TaxTMI 
TaxTMI 
1990 (5) TMI 140
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....se, Calcutta. After coming into existence of the Tribunal, the said revision application stands transferred to the Tribunal in terms of provisions of Section 35-P of the Central Excises and Salt Act, 1944 to be disposed of as an appeal. 2. Briefly the facts of the case are that M/s. Bihar Extrusion Company Pvt. Ltd., Jamshedpur are manufacturers of aluminium extruded shapes and sections falling under Tariff Item 27 (e) and had filed a price list No. 43 dated 4th November, 1988. The appellants did not include the cost of the packing. A show cause notice was issued to the appellants and in reply the appellants pleaded that the cost of packing should not be added to the assessable value and it was pleaded that in most of the outstations des....
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....hat in view of the earlier decisions, the matter may be remanded to the Assistant Collector. 5. Shri Gandhi Dass, the learned JDR who has appeared on behalf of the respondent stated that in view of the earlier decision of the Tribunal, he has got no objection to the remand of the matter to the Assistant Collector. 6. We have heard both the sides and have gone through the facts and circumstances of the case. In para No. 6 the Tribunal in its earlier order No. 469/88-A dated 9th September, 1988 in the case of Collector of Central Excise v. M/s. Bihar Extrusion Co. (P) Ltd. appellant's own case, had observed that : "As regards packing, the record shows that the respondents made their local deliveries in loose condition and used the packi....
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....ause makes no distinction between primary packing and secondary or further subsequent packing. However, a restriction was read into the wide language of the clause by this Court in the Bombay Tyres International case (1984 I SCR 347). Posing the question whether the cost of all packing, no matter to what degree, in which the wholesale dealer takes delivery of the goods, should be included in determining the assessable value or a line should be drawn somewhere, the Court indicated that while the cost of primary packing was indisputably includible, the position would be different in regard to secondary packing. The Court observed that "the degree of secondary packing which is necessary for putting the excisable article in the condition in whi....
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.... be totally uncalled for. Indeed, this was the test applied by one of us (Mukharji, J.) in Hindustan Polymers (supra) for holding that the cost of drums for packing fusel oil was not includible in the assessable value because the goods viz. fusel oil was generally sold in the wholesale market in the raw state, without any packing whatever, leaving it to the wholesale consumer to draw it from the manufacturer's tanks into his trucks, containers or drums. It will be appreciated that if this position were not to be accepted and an enquiry were to be made as to whether such general packing is "necessary" or not, such an investigation might operate both ways. For example, on that basis, it could be argued, in the Hindustan Polymers case that tho....
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....ssable value. That was not the contention even of the respondents and indeed, if carried to its logical conclusion, would render the cost of all packing, other than primary packing, excludible from the assessable value. It seems to me, therefore, that what is to be really seen is this : What is the condition of packing considered by the manufacturers, having regard to the nature of the business, the type of goods concerned, the unit of sale in the wholesale market and other relevant considerations, to be generally necessary for placing the goods for sale in the wholesale market at the factory gatel. In Godfrey Philips and Geep, this Court was concerned with a special type of packing which seemed intended more to protect the packed goods aga....